2007754 (Refugee)

2007754 (Refugee) [2024] AATA 2597 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  2007754
COUNTRY OF REFERENCE:                   China
MEMBER:B. Mericourt
DATE:22 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 March 2024 at 2:16pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Shouters – Local Church – YiGuan Dao practice – detention – physical assault in custody – YiGuan Dao practice in Australia – exit procedures – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1998] HCA 62
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 21 September 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant had a well-founded fear of persecution or that there is a real chance he will be persecuted for one or more of the reasons mentioned in s5J(1) of the Act if he returns to China. Nor was the delegate satisfied that there is any real chance the applicant will suffer significant harm as defined in s36(2A) of the Act if he returns to China.
The applicant appeared before the Tribunal on 5 January 2024 and on 23 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Receiving Country
The applicant claims to be a citizen of the People’s Republic of China. He provided a copy of the bio data page of his Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.
Third Country Protection
The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.
BACKGROUND
The applicant is [an age]-year-old man from Fujian Province in China. He is married and has two sons, one of whom was born in China [after he departed]. His second son was born in Australia in [specified year]. His older sister lives in Australia and his parents, older son and [a sibling] all live in China in the same household. In China he completed [grade] school and then worked as a sales person for a [company].
On 2 June 2017 the applicant was granted a tourist visa and he arrived in Australia [in] June 2017. He lodged his application for protection on 21 August 2017. He did not attend his scheduled interview with the Department on 12 April 2018 and the Department refused his application on 12 April 2018. However, the Department did not notify the applicant of its decision until 22 April 2020, apparently because his whereabouts were unknown at that time.
The applicant lodged his application for review of the Department’s decision with the Tribunal on 1 May 2020.
The applicant’s wife arrived in Australia as the holder of a non-valid visitor visa [in] April 2019. She lodged an application for a Temporary Protection Visa (subclass 785)(TPV) on 1 November 2019. The applicant’s son was included in her application after his birth. On 23 June 2020 the Department refused her application for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of persecution if he returns to China and if so, does he meet the refugee provisions of the Act? If not, does the applicant meet the protection obligations under the complementary provisions of the Act?
The Tribunal has before it the Department’s file relating to the applicant including the delegate’s decision. The Tribunal also has had regard to other material available to it from a range of sources. This includes, but is not limited to the following:
·the applicant’s claims for protection in his statutory declaration which forms part of his application form dated 21 September 2017;
·the applicant’s claims for protection in his statutory declaration submitted to the Tribunal dated 22 December 2023;
·the applicant’s evidence at the Tribunal hearings;
·the applicant’s wife’s claims for protection made to the Department in her statutory declaration dated 1 November 2019;
·The applicant’s wife’s evidence at the Tribunal hearing of 23 February 2024;
·the delegate’s decision in respect of the applicant’s wife and second son made 23 June 2020;
·Department of Foreign Affairs (DFAT) Country Information Report, China, 22 December 2021;
·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;
·Other relevant country information as referred to below.
The applicant’s claims to the Department
The claims the applicant made in his statutory declaration dated 21 September 2017 can be summarised as he fears persecution due to his religious beliefs as he was a practising member of the Local Church (Shouters) and continues to attend the church in Australia. The details of his claims are as follows;
a)    When the applicant completed [grade] school he went to Taixing City in Jiangsu Province to work with a friend of his father, [Friend A];
b)    The applicant became friends with [Friend A's] daughter, [Friend B], who was also his work colleague. She became a Christian and member of the Local Church (aka Shouters) in 2012 as a result of her boyfriend’s ([Boyfriend A]) involvement. She evangelised to the applicant although he did not accept this for some time;
c)    On 10 February 2013 the applicant and [Friend B] were involved in a serious car accident in which her father was killed but she and the applicant escaped with minor injuries. He believes this was a result of her appeals to Jesus and since then he also converted to Christianity;
d)    He started attending meetings of the Local Church the following month. These meetings were organised by [Boyfriend A] usually in people’s homes. The applicant was baptised [in] May 2013;
e)    The PRC authorities consider the Local Church to be an Evil Cult so they kept their meetings hidden and frequently changed locations. In 2015 the applicant became an assistant to [Boyfriend A] and was involved in transmitting messages and transporting teaching materials including the Recovery Version of the Bible only used by the Local Church;
f)     In April 2017 the applicant returned to his hometown in Fujian province to get married. He remained there during May for his honeymoon and planned to return to Taixing City in June. However, one of the Local Church’s secret meetings was discovered by the Public Security Bureau (PSB) in June. Several Christians were arrested including the group leader [named]. [Friend B] suggested the applicant stay where he was temporarily.
g)    In mid-June 2017 [Boyfriend A] and his sister were arrested by the Public Security Bureau (PSB) and shortly afterwards [Friend B] was also arrested. The [company] for which he was working was closed down by the authorities and all the staff were subject to investigation;
h)    As his wife’s friend, [Friend C], had organised his trip overseas just in case something happened he was able to quickly leave China [later in] June 2017;
i)   Since he left China his wife, parents and [a sibling] have been subjected to investigation by the PSB. The applicant believes he was regarded as a major activist of an Evil Cult and blacklisted by the PRC authorities;
j)   In Australia he continues to attend the Local Church;
k)    If he returns to China he will be subjected to persecution and suffer from significant harm.
On 23 December 2023 and 3 January 2024, the Tribunal received submissions from the applicant which included:
·    a statutory declaration made by the applicant dated 22 December 2023 stating that he was now a believer in YiGuan Dao (YGD);
·    a copy of the applicant’s initiation card dated [in] March 2019 with NAATI translation;
·    a letter of support, undated, from [Mr A], ‘introducer’, believer and volunteer worker for YiGuan Dao with NAATI translation;
·    a letter of support, undated, from [name], ‘guarantor’ and believer in YiGuan Dao with NAATI translation;
·    a letter of support, undated, from [Ms A], member of the YiGuan Dao Temple, with NAATI translation;
·    a letter of support, undated, from [name], YiGuan Dao believer, with NAATI translation;
·    a letter of support, undated, from [Mr B], member of the YiGuan Dao Temple, with NAATI translation;
·    five photographs of the applicant at the YiGuan Dao Temple in [Suburb 1] and one photograph of the applicant engaged in [work] at the YiGuan Dao Temple in Melbourne dated between 21 June 2019 and 20 December 2023.
The applicant’s claims in addition to those in his application are outlined in his statutory declaration dated 22 December 2023 and are as follows;
l)   The applicant’s circumstances have changed significantly since he lodged his application for protection in September 2017 as he has since been initiated and became a believer of YiGuan Dao on [a day in] April 2019 ([a day in] March 2019 according to the lunar calendar). He is now a faithful believer of YiGuan Dao and actively making his commitments to [Temple 1], a temple of YiGuan Dao in Australia;
m)   The applicant’s wife had become a believer of YiGuan Dao as a result of her friend, [Friend D], spreading YiGuan Dao teachings. Her friend set up a study group which gathered twice a week. It grew from 10 participants to more than 50 or 60 people;
n)    In December 2018 his wife learned from a policewoman, [named], who had helped them before, that the PSB was paying attention to them since the group was growing. His wife then contacted [Friend C] who organised a new passport for his wife;
o)    His wife, [Friend D] and other members of the YiGuan Dao study group were subject to investigations by the PSB. His wife was threatened, mistreated and humiliated during the interrogation at which she insisted they studied Confucianism or Taoism or Buddhism together;
p)    His wife felt her situation was turning more and more dangerous and [in] March 2019, [Friend C] obtained an Australian visa for the applicant’s wife through her social connections. [Friend C] helped her to escape from China [in] March 2019 and she arrived in Australia [in] April 2019;
q)    Shortly after his wife’s arrival she became a member of [Temple 1], the YiGuan Dao temple in Australia. She then converted the applicant to be a believer in YiGuan Dao;
r)     Owing to these significant changes in his circumstances the applicant may not be subjected to persecution due to his Christian faith in the Local Church but he would suffer from significant harm as a devout believer of YiGuan Dao if he returned to China.
Applicant’s evidence and claims at Tribunal hearings on 5 January and 23 February 2024
During the first hearing the Tribunal discussed with the applicant his family composition, work history, residential history, visa and migration history and those of his wife. The Tribunal then went on to discuss the applicant’s claims in respect of his previous religious beliefs and practices in China, his knowledge and practice of YiGuan Dao in Australia and why he fears returning to China.
The applicant told the Tribunal that his [age]-year-old son now lives with his parents in Guangdong. He does not often speak to his son or parents as he does not dare contact them because he believes he is watched by the Chinese government.
The Tribunal asked the applicant if his parents knew about his religious beliefs. The applicant said that they knew about his beliefs but did not support him. The Tribunal asked him when and how he told his parents about his change of belief to YiGuan Dao. He said he told them on [the day in] April 2019 (the day he was initiated) using voice call on [a messaging service]. The Tribunal asked the applicant why he could not contact his son using the same method. The applicant said he was worried as his name is on a blacklist and this may bring attention from the government to his family in China.
The Tribunal asked the applicant when he knew his wife was arriving in Australia. The applicant said that she did not tell him when she left - only after she arrived in Australia. She told the applicant’s sister who lives in Australia first and then his sister told him.
The Tribunal asked when the applicant’s sister arrived in Australia. He said that she arrived in 2007 or 2008 after high school in order to study. As he was very young at the time he is not clear about when she arrived. She has since married and is now a permanent resident in Australia. The applicant said he also has a [sibling] in China in Guangdong and his wife’s family also lives in China.
The applicant is currently working on a [project]. He has worked for only one or two companies since arriving in Australia. His wife is not working and is a housewife.
The Tribunal asked the applicant why he did not attend his interview with the Department. He said he did not turn up because of the incidents in China in which some of his Christian friends got caught. He thought they may get into trouble. When further questioned about how his friends would get into trouble if he attended an interview in Australia, the applicant said he did not know that the interview would be confidential and he thought that the person who helped him to get his visa would be in trouble with the authorities.
The Tribunal asked the applicant about his conversion to Christianity and participation in the local church in China. The applicant said he became friends with the daughter ([Friend B]) of his father’s friend who had given him a job in Taixing City in Jiangsu Province. [Friend B’s] boyfriend was the head of an underground church and the applicant participated in private gatherings in that church. Around 2015 he became an assistant to [Friend B’s] boyfriend and distributed materials for the church. Around December 2016 he returned to his village in Fujian province to welcome in the New Year with friends and he met his wife there. Around April 2017 they registered their marriage and then had a wedding ceremony in May 2017.
The Tribunal asked about the applicant’s belief in Christianity. The applicant said he only became a Christian because of the car accident he was in with [Friend B] in which [Friend B’s] father died. [Friend B] cried out Jesus’s name and she believed that it was only because of this that she and the applicant survived the accident. He was moved by this and decided to be baptised. He did not have any other reasons to convert to Christianity at that time.
The Tribunal asked the applicant about his practice of Christianity after his baptism. The applicant said he was simply baptised and then attended meetings in a brother’s home where they read the Bible. He didn’t really know much about Christianity.
The Tribunal put to the applicant that he claimed to be a member of the local church for four years and therefore the Tribunal would expect him to know something about Christianity. The applicant said he was only helping with some activities, not really participating. He distributed materials and informed members of the venues for meetings but rarely attended the meetings himself.
The Tribunal asked the applicant whether he thought there were any risks to himself in distributing materials. He thought there was some risk but he was involved in delivering packages of biscuits and could cover the materials with goods and then distribute them in his van. He thought there was less risk involved in informing members of the venues. The Tribunal put to the applicant that this sounded like he had had a fairly minor role in the local church. The applicant agreed. Nevertheless, he feared that he would be at risk after other members of the church were arrested whilst he was in his home province getting married. He feared the other members of the church may disclose his name when they were arrested and then he would be detained as well.

The applicant decided to obtain a visa to come to Australia but did not dare to depart at that time (2 June 2017) because he was worried that those who had been arrested would give his name to the police. He decided to leave a little later from Shanghai airport to avoid detection.
The Tribunal asked the applicant why he did not come to Australia with his wife at that time. He said that he thought that if they left together it would be too obvious so in the end only he departed. His wife was not involved in any church activity at that time. The applicant said that his wife was interviewed by government authorities a week before he left China but he was already in Shanghai so he was not interviewed himself. He assumed that his wife was interviewed because his friends in the local church who had been detained had given the authorities his name.
The applicant said that after his departure his parents were interviewed and harassed by government authorities, so they moved to Guangdong soon after he left China.
The applicant said that after he arrived in Australia his sister took him to a church in [Suburb 2] as she is also a Christian. However, he only visited the church once or twice and listened to the preaching and songs. After that he felt the atmosphere was not so good so he stopped attending. After his wife arrived in Australia, she took the applicant to the YiGuan Dao temple as she had already converted to YiGuan Dao in China.
Claims related to the applicant’s practice of YiGuan Dao
The Tribunal asked the applicant how he came to change from his Christian faith to a belief in and practice of YiGuan Dao.
The applicant told the Tribunal that his wife’s friend’s husband was Taiwanese and a practitioner of YiGuan Dao. After he passed away his wife’s friend returned to mainland China. At a gathering of classmates she shared her belief with the applicant’s wife. His wife started attending YiGuan Dao gatherings every Wednesday and Sunday night secretly. She told him how she was learning about YiGuan Dao with her friend when she was in China via [a messaging service] video.
When the applicant’s wife arrived in Australia, she told the applicant that YiGuan Dao was good. She had been given details about a local temple (fotang) from her friend who had connections in Australia and she started attending taking the applicant with her.
The applicant said he was initiated on his first visit to the temple in [Suburb 1]. At that time he didn’t know much about YiGuan Dao but he trusted his wife so he just followed. The Tribunal asked the applicant if there were any requirements for initiation. The applicant said the only requirements were that he needed to eat vegetarian food for three days before his initiation and pay a contribution fee to the temple.
The Tribunal asked the applicant to describe his initiation. He said that on that day there was a kind of priest and a group of followers and they passed the three treasures to him. Initially he told the Tribunal that he could not disclose these treasures as they were secret to those who were initiated into YiGuan Dao. The Tribunal indicated that it knew in general what these treasures were including that one was a specific hand gesture. The applicant then told the Tribunal about his understanding of the other two treasures.
The Tribunal asked the applicant what benefit YiGuan Dao had for him personally. He said that he could find himself and find the way to Paradise. He witnesses miracles in YiGuan Dao.
The Tribunal asked the applicant about the teachings of YiGuan Dao. He said YiGuan Dao teaches people to be a good person, have a kind attitude and to speak well of others. He believes in Laomuniang (Venerable Mother) who is “lord” of the entire universe. Other beliefs which are part of YiGuan Dao include Taoism, Buddhism, Christianity, Islam and Confucianism. YiGuan Dao says that people should be vegetarian to show respect.
The applicant told the Tribunal that he goes to a book study time on a Wednesday night and that he also attends full or half day ceremonies on Sunday or any other time there is a need.
The Tribunal asked the applicant what was involved in book study night. The applicant said that they read out teachings in books to create homes for spirits who are homeless. They kneel and pray and pass energies to homeless spirits. When there are big disasters everyone gathers to kneel and pray for homeless spirits or spirits in need. They pray in front of a figure with three candles and there is an Enlightened Master to lead them.
The Tribunal asked how practitioners of YiGuan Dao pray and the applicant demonstrated by kneeling and standing (kowtowing).
The Tribunal asked the applicant about particular roles in the temple and the applicant said there is an enlightened master or representative from Laomuniang.
The Tribunal asked the applicant about his involvement with his local temple (fotang) the applicant said that he attends regularly and gives assistance when required. During ceremonies he may cook or clean. As he has building skills he also fixes things. He recently went to Melbourne to assist in building a new temple there. The applicant has provided a photograph of him doing this.
The Tribunal asked the applicant whether he was involved in teaching others about YiGuan Dao. The applicant said that he is not very good at communicating and his wife is better than he is so he does not try to teach others.
The Tribunal asked the applicant whether he would continue to practice YiGuan Dao if he returned to China. The applicant said that he may be able to practice YiGuan Dao in Taiwan but it may be too hard in mainland China as now the Chinese government is repressing belief and people have had to practice secretly.
The Tribunal asked the applicant what he believed would happen if he returned to China. The applicant said that he dares not go back to China because he would be caught straight away because of the previous incident. The Tribunal clarified that he was referring to the arrest of his friends from the local church. The applicant then went on to say that his wife came to Australia and sought protection because of her own practice of YiGuan Dao which she was doing in secret. However, they were found by the authorities.
The Tribunal asked the applicant if he knew how his wife practised YiGuan Dao and was discovered. The applicant said that he only knew she participated in YiGuan Dao but no details. The Tribunal put to the applicant that he had included details about his wife’s participation in his own submission to the Tribunal. The applicant then said the authorities in China discovered his wife’s groups and she was interviewed. When she was interviewed she told the authorities she was studying Buddhism but not YiGuan Dao. His wife told him that she attended YiGuan Dao meetings twice a week in China. His wife was beaten and her ribs were broken when she was interrogated.
The Tribunal asked for clarification as the applicant’s evidence was somewhat confused about when his wife was interrogated and when she was beaten. He thought she was taken to the police station a couple of times in 2018 and interrogated, the last time in October or November 2018 and she was beaten on one of the earlier occasions. She arranged with her friend to obtain a passport in December 2018. The Tribunal asked why she did not attempt to leave earlier after she had been beaten. The applicant said it was difficult to get a passport because she was already on the blacklist due to his own activities in the local church and therefore, she had to get a passport from a different location. Then there was a gap of three months because she was waiting for a visa.
The Tribunal put general country information to the applicant that although YiGuan Dao had been proscribed as an illegal sect in China in 1946 and there had been subsequent crackdowns on practitioners and leaders, it no longer appeared on the Chinese government’s list of active “evil cults” and had not done so since 2017. Furthermore, research undertaken by the Department of Home Affairs did not locate any information from searches on YiGuan Dao practitioners being arrested, detained or imprisoned in mainland China.
The applicant stated that’s impossible. There are only secret groups in mainland China and if he returned he would have to continue his practice secretly.
When the Tribunal asked him again about his fear of returning to China he stated it was because of his previous Christian beliefs especially as his previous colleagues in the underground church would testify against him. It would also be very dangerous for him to practice YiGuan Dao except in secret.
The applicant’s representative also suggested to the Tribunal that the applicant’s wife’s circumstances needed to be taken into account when assessing whether there was a real risk or real chance the applicant would face serious or significant harm if he were to be returned to China.
The Tribunal scheduled a second hearing in order for the applicant’s wife to appear as a witness.
Second hearing on 23 February 2024
At the second hearing the Tribunal asked the applicant to further describe his involvement in the fotang (temple) and the practice of YiGuan Dao. He said that he works on weekdays so sometimes he goes to Wednesday study group in the evenings if he has time and he attends rituals and meals on Sundays at the temple. Sometimes he goes on Saturdays if he is not working if there are specific events happening. At the temple he does cooking, cleaning and repairs. Recently he has been assigned another task as a sort of staff person which involves giving instruction to people when to do prostrations - telling them when it was first, second etc. He sometimes helps his wife to make zhongs (a form of sticky rice dumplings wrapped in flat leaves made between April and June) on weekends.
During the week the applicant’s wife takes his son to the fotang when he is not at childcare and on weekends they go together as a family. His son attends sutra classes and Chinese language classes.
At this hearing the applicant said that he ‘propagated’ YiGuan Dao to his friends at work. He may invite people home and propagate to them. The Tribunal asked for an example of when he did this. He said he doesn’t do this very often. The last occasion he invited a co-worker home was probably more than 2 months ago on a weekend. He talked to the co-worker alone. His wife was in Melbourne for the YiGuan Dao assembly. His older sister was caring for their son at the time. The applicant said he propagated to one of his work friends. When asked for examples he said he had propagated YiGuan Dao to [name], who then came to fotang. However, he no longer lives in Sydney as he has moved to Perth. He also propagated to another friend, [named], (his employer), and he came to the temple and later he brought his wife to the temple.
The Tribunal put to the applicant that at the previous hearing he said he did not propagate YiGuan Dao because he was not a good communicator and that it was his wife who was a good communicator. The applicant said it was true that he was not as good at communicating as his wife but that he did propagate YiGuan Dao sometimes to his workmates.
The applicant said that if he returned to China he would continue to practice YiGuan Dao and would also propagate YiGuan Dao and set up a temple and then he would be arrested by the authorities.
The applicant’s wife (who had not been in the hearing room when the applicant gave evidence to the Tribunal) confirmed her husband’s evidence about his involvement in the fotang that is, he is involved in cooking, praying and making incense and fruit offerings. She gave an example of his assistance building the temple in Melbourne. She also said he sometimes propagates YiGuan Dao to his co-workers and brings them to the temple. She gave some examples which included the friend who is his boss that the applicant had mentioned to the Tribunal. She said that he has now also been made an instructor for prostration during prayers/rituals.
Assessment of the applicant’s claims and Tribunal findings
Claim of persecution for reasons of his Christian religion
The Tribunal first assessed the applicant’s claim to fear persecution in China as a consequence of his practice and belief in Christianity as a member of the local church (the Shouters).
The evidence the applicant provided to the Department and to the Tribunal relating to his conversion to Christianity and activities in the local church in China was relatively consistent. The applicant did not provide any corroborative evidence of his baptism in the local church. Based on his own evidence provided at the hearing, it appears that the applicant had a minor role, if any, in the local church. He stated that the only reason he had joined the church was because of the trauma of the car accident in which his friend’s father was killed and his friend’s belief that this was a result of her faith in Jesus. He clearly stated to the Tribunal that he didn’t really have any other reasons at that time for converting to Christianity and that he did not really participate in Christian activities or practices. Furthermore, the applicant’s evidence was that he attended the local church only a couple of times in Australia and did not think it was good so he stopped attending.
The Tribunal had regard to the fact that the applicant was able to leave China without any difficulties using his own passport. Whilst he claimed that this was because he left from Shanghai airport, the Tribunal had regard for the fact that even in 2017 China had a sophisticated computerised data system which would easily have identified him when departing from any airport in the country.[1]
[1] Department of Foreign Affairs and Trade (DFAT), Country Information Report People's Republic of China, 21 December 2017, 5.20, p.40
DFAT reports that exit and entry is strictly regulated;
5.31 The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from tax, customs, police or judicial authorities. This technology is used to create an exit control list………5.33 If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. …5.35.DFAT assesses it is almost impossible to exit China without authorities’ knowledge.[2]
[2] Department of Foreign Affairs and Trade (DFAT), Country Information Report People's Republic of China, 22 December 2021, 5.31-5.35, p 40
The Tribunal also gave consideration to the fact that the applicant was unable to provide any corroborative evidence related to the arrest of other members of the local church, or interrogation or questioning of his parents, wife or other members of the church.
Finally, the Tribunal had regard to the applicant’s own evidence that he did not persist in his practice of the Christian religion when he arrived in Australia at all.
Based on the above evidence, the Tribunal is not satisfied that the applicant was a member of the local church in China or that he came to the attention of the authorities for reasons of his religion or that he was sought for questioning after his departure from China. The Tribunal is not satisfied that his parents, wife or other family members in China were harassed or interrogated or that his parents moved house for those reasons. The Tribunal finds that there is no real chance or real risk that he will suffer significant or serious harm if he returns to China now or in the foreseeable future for reasons of his claimed Christian religion.
Claim of persecution for reasons of his belief in and practice of YiGuan Dao
The Tribunal had regard for the fact that the applicant immediately started attending the YiGuan Dao temple (fotang) after his wife’s arrival in Australia in April 2018 and was initiated at his first visit. The Tribunal concludes that at this point the applicant had no understanding of YiGuan Dao and no commitment to the practice of YiGuan Dao.
However, based on the supporting evidence and witness statements the applicant provided to the Tribunal and his own testimony regarding his understanding of the tenets of YiGuan Dao, and the nature of the activities with which he has been involved, the Tribunal is satisfied that the applicant has been consistently attending his fotang and consistently been involved in the activities of the fotang since April 2018 – that is, for the past six years.
The applicant’s wife’s evidence about her own activities and practice in YiGuan Dao indicates that she is very deeply committed to her faith and this suggests that, at least in part, the applicant’s own active involvement is a result of her strong commitment. The Tribunal is satisfied that if both the applicant and his wife returned to China now or in the reasonably foreseeable future that they would both continue to actively practice YiGuan Dao, attend and actively participate in gatherings and that his wife would also actively proselytize.
The Tribunal has concerns about the applicant’s evidence relating to his own claims of proselytization (what he referred to as propagation). He made no mention of proselytization activities, or indeed any activities other than his conversion in his statutory declaration dated 22 December 2023 provided to the Tribunal prior to the hearing. In the first hearing he stated he does not proselytize as he is not good at communicating. He leaves this to his wife. Only a few weeks later, at the second hearing, he claimed he actively proselytizes to his workmates and named two of them. His wife confirmed the name of one of these two.
Based on these inconsistencies in his own testimony the Tribunal is not satisfied the applicant is involved in proselytizing YiGuan Dao in Australia and finds these claims not to be credible. Consequently, the Tribunal finds that he will not proselytize in China if he were to return now or in the reasonably foreseeable future. Nevertheless, the Tribunal accepts that there is a substantial chance he would be considered by authorities in China to be involved in proselytization by virtue of his wife’s active involvement in such activities combined with his own personal practice of YiGuan Dao.
Country information regarding YiGuan Dao in China
The Tribunal has had regard to a range of country information, however, information is limited regarding the current treatment of YiGuan Dao practitioners in China.
The most recent Department of Foreign Affairs and Trade (DFAT) Country Report on China[3] states that China officially recognises five religions: Buddhism Taoism, Catholicism, Islam and Protestantism. Under President Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion which aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden.
[3] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report: People’s Republic of China, 22 December 2021, p.16
The YiGuan Dao sect, also referred to as Tian Dao, was founded in Shandong province in the 1920s by Zhang Tianran (Zhang Guangbi, 1889–1947).[4]
[4] Clart, P. ‘Yiguan Dao’, in Encyclopaedia of Contemporary Chinese Culture ed E.L. Davis, Routledge, London, 2005, p.699
DFAT provides the following general information about the nature and origins of Yi Guan Dao, its practice in China and the nature of persecution faced by its followers in China[5]:
Yi Guan Dao
3.75 Yi Guan Dao (YGD, also: Tian Dao or I-Kuan Tao) is a syncretic Chinese religion combining elements of Buddhism, Confucianism and folklore. In December 1950, YGD was . sought to re-establish itself following China's cultural revolution, but quickly became the target of campaigns of arrests in 1983.
3.76 YGD beliefs may take different forms in different communities and might be influenced by different religions when established in different places around the world. Most practitioners are vegetarian. As with other xie jiao, the range of communities and propensity to split means that different adherents might have different beliefs.
3.77 While YGD continues to be prohibited in China, it is not included on the list of active cults released in 2017 (xie jiao (illegal cults)). The Dui Hua Foundation reports YGD followers in mainland China are likely to be concentrated in Guangdong and Fujian. The current status of the group is not clear, but data on court cases collected by Dui Hua found that arrests and imprisonment of members does occur, for example for proselytisation activities.
3.78 YGD is not as large as it used to be but reports of some attention by authorities continue. Members are not allowed to practise their religion freely. DFAT assesses that members of YGD face a moderate risk of official discrimination and a low risk of societal discrimination.
[5] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report: People’s Republic of China, 22 December 2021, pp.23-24

YiGuan Dao was first proscribed as an illegal sect in China in 1946 and was the target of a nationwide crackdown in December 1950. During the Cultural Revolution between 1966 and 1976, YiGuan Dao sought to re-establish itself in China but became the target of strike-hard campaigns in 1983. At this time, many followers were incarcerated or executed.[6]
[6] Department of Foreign Affairs and Trade (DFAT), YiGuan Dao DFAT Cable IC69305L, 18 February 2019
China’s pre-1997 Criminal Law classified YiGuan Dao as a ‘reactionary secret society’ or fandong huidaomen, a pejorative term denoting people or ideas that embrace outdated or superstitious views. This term has since fallen into disuse following the 1997 amendment of Article 300 of the Criminal Law which repealed ‘reactionary secret society’ and replaced it with ‘organising a cult to undermine implementation of the law.’[7]
[7] Ibid
Some newer religious movements, known as xie jiao, are illegal in China. The Criminal Law provides for prison sentences of up to 7 years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. There is a list of xie jiao, but it can change quickly and is not available from official sources, making it difficult to determine at any time whether a particular religious movement is banned.[8]
[8] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report: People’s Republic of China, 22 December 2021, p.20
More recently, the status of YiGuan Dao in 2019 was ‘unclear’ as there were no estimates of the number of followers in mainland China. YiGuan Dao was not included in official lists of banned cults issued in 2000, 2005 or 2017. Recent country information indicates that YiGuan Dao is not currently on the list of xie jiao or list of active cults released by the China Anti-Cult Association.[9] This suggests that it was not considered by the Chinese authorities to have an active presence in mainland China or, alternatively, not considered by the Chinese authorities to be a threat to Chinese nationalism at that time.
[9] Bitter Winter, ‘The List of the Xie Jiao, a Main Tool of Religious Persecution’, 6 November 2018
A December 2018 article published by Dui Hua Foundation discusses the resurgence of YiGuan Dao following its past banning by the Chinese government as an “illegal secret society” and heretical sect at the conclusion of China’s civil war more than 70 years ago. The article points out that spiritual movements that have the potential of attracting a large following are considered a threat to the Chinese government, not tolerated, and are stigmatised by the government. As such, YiGuan Dao continues to be stigmatised in official narratives as “anti-science, anti-humanity and anti-society.”[10]
[10] Dui Hua Foundation, ‘The Resurgence of Yi Guan Dao’, 31 December 2018
In 2019, in response to a series of questions about YiGuan Dao, DFAT noted that instances of persecution appear to be localised and discreet. It is unclear in most cases whether YiGuan Dao followers have been criminally charged for their religious activities. Nevertheless, the US-based Dui Hua Foundation reported in December 2018 that followers of YiGuan Dao continue to be targets of government crackdowns. Restrictions on the free practice of religion continue to tighten in mainland China. These restrictions would likely affect followers of YiGuan Dao. While the numbers of YiGuan Dao followers in China remains unclear, and the group is not currently considered to be an ‘active’ sect in China, followers may be subject to suppression by Chinese authorities and police.[11]
[11] Department for Foreign Affairs and Trade, ‘Yi Guan Dao DFAT cable IC69305L’, 18 February 2019
In March 2021, the Dui Hua Foundation published a further report about YiGuan Dao which discusses its recent activity in Guangzhou based on court judgements. The report states that YiGuan Dao continues to gain traction among the middle-aged rural population in Shantou, Guangdong, where prosecutors accuse YiGuan Dao of conducting “reactionary” activities.[12] The 2021 article provides further details about the ban against YiGuan Dao mentioned in the December 2018 article, including subsequent arrests of seven YiGuan Dao leaders who were sentenced to prison. Details about the profiles of those arrested and their activities indicate authorities concentrated their efforts on prosecuting leaders who established temples, actively proselytised and distributed material to worshippers.[13]
[12] Dui Hua Foundation, ‘The Ongoing Crackdown on Yi Guan Dao’, 8 April 2021
[13] Ibid.
A 2020 book about Yi Guan Dao by author Sebastien Billioud describes different approaches authorities may take in terms of punishment towards YiGuan Dao leaders and followers:
Taiwanese initiators and lecturers are occasionally arrested in the PRC when the authorities raided a place of worship. When this happens, what may happen is that they are detained for a couple of days, expelled and forbidden to come back for a period of five years. Books and material are occasionally confiscated. Punishment, however, might sometimes be harsher for Mainland adepts, and I heard about the case of an altar master condemned to a one year jail sentence and a heavy fine. This being said, it is noteworthy here that the attitude of the authorities nevertheless varies depending on the location of the activities organised by the Yi Guan Dao and their content.[14]
[14] Billioud, Sebastien, ‘Reclaiming the Wilderness: Contemporary Dynamics of the YiGuanDao, New York, Oxford University Press, 2020, pp. 170-171
Billioud notes that in recent years the authorities in Fujian Province have tacitly allowed YiGuan Dao to conduct activities on a ‘small-scale’ that focus on aspects of classical Chinese culture rather than religion, despite their knowledge that YiGuan Dao is a religious sect. Billioud mentions that the religious aspects of YiGuan Dao are ‘totally forbidden’ but take place nonetheless:
…. In some places (e.g. Fujian, Guangdong) there is - or at least there was until 2018 - a certain toleration for small-scale activities (involving less than 30 persons) focusing on classical culture and avoiding religious dimensions, even when the authorities clearly know that these activities are organised by YiGuan Dao adepts. To the contrary, strictly religious activities (rituals, fahui and training sessions, spirit-writing, etc) remain totally forbidden even though they nevertheless take place. This ambivalent attitude of the Chinese authorities toward YiGuan Dao today is reflected in the absence of any categorisation or administrative regulation regarding the group: it is neither a recognised religion, the list of which is extremely limited, nor a “pernicious cult” as it was labelled in the past. This uncertainty - that may translate in fluctuating policies of the authorities - is currently the lot of many new religious movements developing in China.[15]
[15] Billioud, Sebastien, ‘Reclaiming the Wilderness: Contemporary Dynamics of the YiGuanDao, New York, Oxford University Press, 2020, pp. 170-171
Most recently in January 2024, Bitter Winter, a website on ‘religious liberty and human rights’ critical of Chinese Government, published an article about the arrest of Taiwan’s YiGuan Dao leaders as “cultists” when visiting China, stating that “on December 26, Taipei’s Mainland Affairs Council warned that the anti-xie-jiao Article 300 of the Criminal Code is now enforced against YiGuan Dao although it is not in any official ‘xie jiao’ (evil cult) list. It advises Taiwanese devotees of YiGuan Dao not to travel to the mainland and even being in possession of YiGuan Dao books on vegetarianism has been regarded as enough to characterise Taiwanese visitors as members of a xie jiao and detain them.”[16]
[16] 5 January 2024, downloaded 20 March 2024.
Overall, DFAT assesses that an individual’s ability to practice religion depends on whether the individual worships in a registered or unregistered institution, whether they practice openly or private, and whether an individual’s religious expression or the religion itself is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues. Regulations that prohibit proselytising are generally enforced across China and religious education for those under 18 years is not permitted.[17]
[17] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report: People’s Republic of China, 22 December 2021, p.16
Assessment of claims and findings
Based on the above findings made regarding the applicant’s commitment to and practice of YiGuan Dao in Australia, together with the above country information which indicates that YiGuan Dao may still be regarded as illegal by Chinese authorities and that practitioners cannot openly practice YiGuan Dao without significant modifications to their practice, the Tribunal is satisfied that there a real chance the applicant will suffer serious harm for reasons of his religion.
Whilst independent country information is not extensive about how practitioners of YiGuan Dao are currently treated in China, there is extensive information the Chinese authorities do not tolerate proselytization of religion, the religious education of minors, the open practice of religions which are considered to be cults or the distribution of religious materials that the Chinese Communist Party considers may undermine the authority of the state.
Based on the Tribunal’s findings above regarding the applicant’s commitment to and practice of YiGuan Dao in Australia the Tribunal is satisfied that he will continue to practice YiGuan Dao if he returns to China and this is an unregistered religious institution. The Tribunal is also satisfied that the applicant will continue to provide instruction in YiGuan Dao to his children which is against the regulations in China which puts him at risk of prosecution under the Regulations on Religious Affairs.[18]
[18] United States Department of State (USDOS), ‘2022 Report on International Religious Freedom: China (includes Hong Kong, Macau, Tibet and Xinjiang’, 15 May 2023, p.15
As discussed above, the Tribunal is not satisfied the applicant will proselytise, however, it is satisfied that his wife would continue to do so if she is returned to China.
When assessing whether there is a real chance the applicant will suffer persecution for a refugee reason the Tribunal is guided by the High Court’s determination in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (Chan)[19] that a real chance discounts what is remote or insubstantial[20]; that a real chance is one that is not remote, regardless of whether it is less or more than 50%[21]; and an applicant for refugee status may have a well-founded fear of persecution even though there is on a 10% chance that they will be persecuted, however, a far-fetched possibility of persecution must be excluded[22].
[19] Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1998] HCA 62
[20] Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1998] HCA 62 at [407]
[21] Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1998] HCA 62 at [397] – [398]
[22] Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1998] HCA 62 at [429]
Based on the above country information and the extent of the applicant’s involvement in the practice of YiGuan Dao, the Tribunal is satisfied that the applicant has a well-founded fear of persecution on the basis of his religious practice. Furthermore, the Tribunal finds that the real chance the applicant will suffer serious harm is not remote or far-fetched, given the extent of his practice and the fact that he will continue to provide religious instruction to his minor children if he returns to China now or in the reasonably foreseeable future.
The Tribunal is satisfied that the applicant is unable to relocate in China to avoid the harm that he fears and nor is he able to access protection as the state is the agent of persecution.

100. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
101. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
B. Mericourt
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2597

22 March 2024

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